AUL Action Legal Memo: The Vulnerable Hyde Amendment

The Hyde Amendment prevents states from using federal funds under Medicaid to pay for abortions (except under limited circumstances, currently when the mother’s life is in danger or the pregnancy is the result of rape or incest); however, the Hyde Amendment is not permanent law. Furthermore, it may not prevent taxpayer dollars from paying for any and all abortions mandated in the health care reform bills currently before Congress. Therefore, in order to prevent federal funding of abortion, health care reform must expressly exclude mandates of any kind for abortion, must not alter prohibitions on federal funding of abortion contained in the Hyde amendment or other provisions of law, and must explicitly ensure that federal funds do not pay for abortion or for plans that cover abortion.

The Nature of the Amendment

The Hyde Amendment is not a statute, but requires Congressional approval every year. Since September 1976, Congress has approved this funding restriction — named after its original author, Congressman Henry Hyde — either by an amendment to the annual appropriations bill for the Department of Health and Human Services (formerly the Department of Health, Education, and Welfare) or by a joint resolution. However, nothing requires Congress to pass it. In fact, on several occasions Congress has broadened or narrowed the categories of “specified circumstances” where reimbursement is allowed. Congress could expand the exceptions much farther or simply drop the amendment entirely.

In Harris v. McRae,1 the Supreme Court held that the Hyde Amendment was constitutional, and that the Social Security Act does not require states participating in the Medicaid program to fund “medically necessary” abortions for which there is no federal reimbursement under the Hyde Amendment. The court rejected claims that the federal restriction on abortion funding was invalid as a denial of due process, equal protection, freedom of religion, and as an establishment of religion in violation of the First Amendment.

If the Hyde Amendment is eliminated, however, courts will require Medicaid funding of abortion. In the 1996 case Planned Parenthood v. Engler, a Circuit Court held that abortion “fall[s] within several of Medicaid’s mandatory categories of care” and that a state law that restricted funding for abortion to those necessary to save the mother’s life conflicts with the “mandate.”2 The court found that “under Medicaid, certain categories of medical care are mandatory and therefore must be provided by participating states when a physician certifies that the care is medically necessary to the patient.”3

The court broadly concluded that “abortion fits within many of the mandatory care categories, including ‘family planning,’ ‘outpatient services,’ ‘inpatient services,’ and ‘physician services.’” Therefore, where Congress does not explicitly prohibit states from funding “medically necessary” abortions, states must fund them. Decisions in other Circuits are in agreement.4

Current Status of the Amendment

The Hyde Amendment currently forbids states from using federal funds for abortions except when the mother’s life is endangered or the pregnancy is the result of rape or incest.5 However, states must cover abortions that meet the federal exceptions. Below is a breakdown of current state funding of abortion, from the Alan Guttmacher Institute:

32 states and the District of Columbia follow the federal standard and provide abortions only in cases of life endangerment, rape, and incest.

4 of these states also provide state funds for abortions in cases of fetal abnormality.

3 also provide state funds for abortions that are necessary to prevent grave, long-lasting damage to the woman’s physical health.

17 states use state funds to provide all or most “medically necessary” abortions not covered under the federal standard.

1 state covers abortions only in cases of life endangerment, in apparent violation of the federal standard.

The Hyde Amendment and Health Care Reform

The two health care proposals before Congress, H.R. 3200 and the Senate HELP bill, may mandate taxpayer funding of abortion even if the Hyde Amendment remains law. Proponents of these bills argue that they do not need an explicit prohibition on the use of federal taxpayer dollars for abortion, because the Hyde Amendment prevents such funding. However, their argument is incorrect for several reasons.

First, Congress may fail to pass the Hyde Amendment.

Second, even if Congress continues to add the Hyde Amendment to the Labor-HHS appropriations bill each year, it may prevent only the funds appropriated in that bill from being used for abortions. The funding scheme for health care reform is discussed in more detail in the next section.

Third, the health care reform bills before Congress mandate taxpayer funded abortion. The Senate HELP bill delegates to a “Medical Advisory Committee” the role of deciding what benefits any private or public health care plan must offer. This Committee is expected to include abortion as a required minimum benefit.7 In the House, an amendment added to H.R. 3200 permits the Secretary of the Department of Health and Human Services (HHS) to include abortion in the public health insurance plan, and requires taxpayer funded abortion through the provision of affordability credits for plans that cover abortion. The current Secretary of HHS, Kathleen Sebelius, is staunchly pro-abortion and would certainly include abortion in the plan, allowing for immediate federal funding of elective abortion coverage. The provision also requires that all areas of the country contain one private plan that covers abortion.8

Fourth, prior court holdings, like Planned Parenthood v. Engler, which state that abortion is included within several of Medicaid’s mandatory categories of care will certainly apply to any federal statute revising Medicaid and involving health care reform.

Fifth, the rejection in the House and Senate Committees of several pro-life amendments that would have ensured that abortion was not funded in the bills, demonstrates that the bills are intended to mandate coverage of abortion.

Bypassing the Hyde Amendment Through Back Door Spending Authority

Even if the Hyde Amendment were to remain intact legislatively, the funding mechanism employed by Congress to pay for the trillion-dollar health care reform effort circumvents the Hyde Amendment, rendering it inapplicable outside of Medicaid.

H.R. 3200 creates the Health Insurance Exchange Trust Fund (the “Trust Fund”) as the means of funding new health care spending and entitlements. This spending includes new affordability credits, subsidies offered to individuals making up to 400% of the federal poverty level to put towards the purchase of health insurance. Individuals may use the subsidies to offset the cost of enrolling in either the public plan or a private plan.

It is important to keep in mind that the public plan option in H.R. 3200 includes abortion coverage (as likely will the Senate version as well) and that private plans would have to include abortion coverage under the Senate version. Taken as a whole, abortion is effectively subsidized by tax dollars through the affordability credits, and the Hyde Amendment does not prevent this.

To clarify, instead of following the path that most authorization bills follow, in which the authorizers present completed legislation to the appropriators in order to fund the project, H.R. 3200 self-appropriates by funding its new programs through a Trust Fund created specifically for that purpose.9 Referred to as “back door spending authority,” this tactic tosses aside a crucial check in our government’s carefully calibrated checks and balances system through bypassing the Appropriations Committee in order to obtain funding for its new spending.

Similarly, in this way H.R. 3200 also bypasses the current version of the Hyde Amendment, because it applies only to appropriations made in the LHHS bill. This circumvention opens up the possibility of taxpayer-funded abortion in the new health care system.

What is Required to Prevent the Health Care Plans from Mandating Abortion Coverage

Congress must continue to pass the Hyde Amendment every year. But that is not enough to prevent the use of federal tax dollars for abortion or the imposition of abortion coverage on private health plans if a health care reform bill is passed.

Any health care reform bill must contain language that (1) explicitly excludes abortion from the required basic benefits that any government or private plan must offer, and (2) prohibits any taxpayer funding of abortion. Without this language, the health care reform bills before Congress will require massive federal funding of abortion and impose abortion-funding requirements on private entities.